In a judgment of 21 December 2023, the Labour Court of Appeal of Brussels has ruled that certain Deliveroo riders (previously active) should be considered workers in a subordinate relationship with Deliveroo as the employer. This judgment reverses the first instance judgement of 8 December 2021 of the Labour Tribunal of Brussels that had ruled in favour of Deliveroo.
The case dates back to a claim by the Labour “auditor” (the public prosecutor) regarding the wrongful qualification as independent workers of the Deliveroo riders. In the same case, the 28 riders and four trade unions had voluntarily intervened to bring a claim against Deliveroo. The case revolves mainly around two issues: first the question of whether Deliveroo can use the special tax system for the sharing economy and second whether the riders should be considered employees or self-employed.
-
Application of the beneficial tax system for the sharing economy
Deliveroo claims that the riders were working under the special system for the sharing economy. This is a tax system which allows citizens to provide certain services to other citizens through a digital platform with a beneficial rate for income taxes and an exemption from social security contributions. However, the application of this derogatory system is contingent upon strict conditions. Just like was the case in the first instance, the Labour Court of Appeal maintains that Deliveroo does not meet the conditions of the system:
- Deliveroo riders deliver goods, which is explicitly excluded from the scope.
- The services can be qualified as a professional activity while the system is meant for non-regular activities.
- The services are not only provided to customers/citizens but also to businesses.
- Deliveroo claims that it only acts as a platform to bring the rider and the customer together to close a contract between themselves, but the Labour Court of Appeal considers this to be artificial.
Deliveroo obtained a tax ruling on 8 June 2021 in which the tax authorities agreed with the application of the beneficial tax system. However, this ruling only applies to the future and is not binding for the Labour Court of Appeal. In 2018 and 2019 the tax authorities had warned Deliveroo that it was illegally applying the system. In any case, the Labour Court of Appeal concludes that Deliveroo cannot use the system and that the application of the system does not imply anything regarding the qualification of the labour relationship. The only legal tool based for determining the employment relationship is the Labour Relations Act of 2006.
